When free-speech advocates point out that the First Amendment protects even hate speech, as the attorney Ken White recently observed, they are often met with extreme hypotheticals. For example: “So, the day that Nazis march in the streets, armed, carrying the swastika flag, Sieg-Heiling, calling out abuse of Jews and blacks, some of their number assaulting and even killing people, you'll still defend their right to speak?"

In Charlottesville, he declared, something like that scenario came to pass: “Literal Nazis marched the streets of an American city, calling out Jews and blacks and gays, wielding everything from torches to clubs and shields to rifles, offering Nazi slogans and Nazi salutes. Some of their number attacked counter-protesters, and one of them murdered a counter-protester and attempted to murder many others. This is the ‘what if’ and ‘how far’ that critics of vigorous free speech policies pose to us as a society.”

Nevertheless, he wrote, his civil-libertarian views were unchanged, his belief in constitutional protections for hate speech unaffected, because the countervailing hypothetical that free-speech advocates have always raised in reply to dark scenarios about hate speech––that it is shortsighted to give the state “the power to choose what speech is acceptable and what speech isn't, and use its vast power to punish the difference,” because that state may one day be controlled by a leader “who overtly relishes the power to punish people who think like you do, encouraged by supporters who hate you”––applies every bit as much to the present moment.

The Nazis and the KKK marched.

Yet even now, at the bottom of the slippery slope, a broad reading of the First Amendment is still the framework that best protects ethnic and religious minority groups. In fact, marginalized groups—street activists, Muslim immigrants, Black Lives Matter protesters—would suffer particularly at this very moment if the faction of progressives who want to limit free speech got their way.

Charles C.W. Cooke captured why in a satirical response to a recent New York Timesop-ed in which K-Sue Park called on the ACLU to change its approach to free speech, arguing that it provides help to hateful causes and that “the legal gains on which the ACLU rests its colorblind logic have never secured real freedom or even safety for all.”

Cooke wrote:

Park is correct.

It is high time that the ACLU moved onto the right side of History and abandoned the “narrow reading” of the First Amendment that is the result of 50 years of unanimous Supreme Court precedent. In lieu, it must focus on working toward more diverse and productive ends, such as giving Jeff Sessions and Donald Trump the robust censorship powers that they so richly and urgently deserve. The United States federal government is now run at every level by Republicans. So, indeed, are the lion’s share of the governors’ mansions, statehouses, and localities. If the ACLU really knuckles down, it can ensure that these figures — and not pernicious “neutral” principle — determine the edges and contours of America’s civil society.

He added:

‌The ACLU insists that “preventing the government from controlling speech is absolutely necessary to the promotion of equality.” But more sensible thinkers grasp that quite the opposite is true. As Park notes, any defense of the status quo “perpetuates a misguided theory that all radical views are equal.” They’re not, and, in consequence, an arbiter is necessary. At first, that should be the ACLU, which should simply let some censorship be – or, even better, start endorsing it. And eventually, having been freed up by the ACLU’s backing away from what Park notes correctly is “only First Amendment case law,” the government itself should assume that role. Then, and only then, will some space have been cleared for the wise.

We have an array of differing views in this country, but I think we can all agree that nobody could be better suited to that oversight role than Jeff Sessions, President Donald Trump, and the thousands upon thousands of state-level Republicans who have been recently swept into office by the infallible will of the people. Furthermore, we should all be able to unite around the appealing chance to hand more power over to the police.

Donald Trump is a man marked out for his wisdom, scholarship, and judicious temperament. But, exquisite as his judgment is, he is able to direct prosecutions only on a macro level. To make the scheme work in practice, America’s police officers must enjoy the legal opportunity to determine what — and who — sits outside of the law’s protection. By insisting upon a consistent application of the First Amendment — and, most problematically, by defending “the legal gains on which [it] rests its colorblind logic” — the ACLU is depriving our cops of this vital first-line oversight role.

In the wake of Charlottesville, that must change.

The faction Cooke is parodying really is that shortsighted.

If rules forbidding hate speech were passed into law and approved by the Supreme Court, they might well prohibit Nazis and Klansmen from marching to anti-Semitic chants, or waving flags with swastikas, or marching in a torchlit parade through the streets, causing some white supremacists to stay home and others to become more radicalized, as happens when groups are prohibited from seeking political remedies.

Meanwhile, Trump and Sessions, the two most powerful law-enforcement figures in the federal government, already draw equivalences between white supremacists and the counterprotesters who meet them on the streets; and they conflate Antifa, a movement that explicitly condones extralegal violence, with Black Lives Matter, a movement dominated by people who reject violence.

Yes, those equivalences are false. And that wouldn’t matter.

Under a legal regime where hate speech was not considered free speech, Trump and Sessions could likely punish words used by members of Antifa and Black Lives Matter. Do you think he’d police their speech more or less vigorously than white supremacists?

Under a legal regime that treated more kinds of speech as incitement, on the theory that Nazis and other white supremacists are pushing an inherently violent ideology, Trump would very likely use the same rules and precedents to target, say, imams at whatever mosques Sessions judges to be inciting Islamist violence; or Twitter activists who tell their followers that punching Nazis is woke. Those whom Trump has taken to calling the “alt-left” would be most at risk.

And the shortsightedness knows no bounds.

“As college presidents try to figure out whether the First Amendment protects conservatives’ right to create political spectacle and instigate violence,” Jennifer Delton writes in the Washington Post, “it might be useful to recall another time when American liberals were forced to sidestep First Amendment absolutism to combat a political foe: the 1940s, when New Deal liberals purged U.S. communists from American political life.” The argument is a perfect illustration of a failure to see what is before one’s nose: an alternative theory of the First Amendment is said by the author to have enabled a bygone faction to purge a leftist minority from political life; and this professor suggests reviving that theory while Trump is in the White House and public university systems mostly answer to Republican legislatures.

It’s been almost 25 years since Henry Louis Gates wrote,

The critical race theorists must be credited with helping to reinvigorate the debate about freedom of expression; the intelligence, the innovation and the thoughtfulness of their best work deserve a reasoned response, and not, as so often happens, demonization and dismissal. And yet, for all the passion and all the scholarship that the critical race theorists have expended upon the problem of hate speech, I cannot believe that it will capture their attention for very much longer... The advocates of speech restrictions will grow disenchanted not with their failures, but with their victories, and the movement will come to seem yet another curious byway in the long history of our racial desperation.

And yet the movement will not have been without its political costs. I cannot put it better than Charles Lawrence himself, who writes: "I fear that by framing the debate as we have––as one in which the liberty of free speech is in conflict with the elimination of racism––we have advanced the cause of racial oppression and placed the bigot on the moral high ground, fanning the rising flames of racism." He does not intend it as such, but I read this passage as a harsh rebuke to the movement itself. As the critical race theory manifesto acknowledges, "This debate has deeply divided the liberal civil rights/civil liberties community." And so it has. It has created hostility between old allies and fractured longtime coalitions. Was it worth it? Justice Black's words may return, like the sound of an unheeded tocsin, to haunt us: "Another such victory and I am undone."

With Trump in the White House, that warning is even truer today. A weakened First Amendment in today’s climate would be marshaled against Trump’s opponents, even as it robbed them of their ability to fight back. It would be a gift to white supremacists, not a blow against them.

About the Author

Conor Friedersdorf is a staff writer at The Atlantic, where he focuses on politics and national affairs. He lives in Venice, California, and is the founding editor of The Best of Journalism, a newsletter devoted to exceptional nonfiction.

Most Popular

After a year of uncertainty and unhappiness, the president is reportedly feeling more comfortable—but has he really mastered the job?

It was a fun weekend for Donald Trump. Late on Friday, Attorney General Jeff Sessions fired Andrew McCabe, the outgoing FBI deputy director whom Trump had long targeted, and the president spent the rest of the weekend taking victory laps: cheering McCabe’s departure, taking shots at his former boss and mentor James Comey, and renewing his barrage against Special Counsel Robert Mueller.

Trump’s moods shift quickly, but over the last week or so, a different overarching feel has manifested itself, a meta-mood. Although he remains irritated by Mueller and any number of other things, Trump seems to be relishing the latest sound of chaos, “leaning into the maelstrom,” as McKay Coppins put it Friday. This is rooted, Maggie Haberman reports, in a growing confidence on the president’s part: “A dozen people close to Mr. Trump or the White House, including current and former aides and longtime friends, described him as newly emboldened to say what he really feels and to ignore the cautions of those around him.”

Invented centuries ago in France, the bidet has never taken off in the States. That might be changing.

“It’s been completely Americanized!” my host declares proudly. “The bidet is gone!” In my time as a travel editor, this scenario has become common when touring improvements to hotels and resorts around the world. My heart sinks when I hear it. To me, this doesn’t feel like progress, but prejudice.

Americans seem especially baffled by these basins. Even seasoned American travelers are unsure of their purpose: One globe-trotter asked me, “Why do the bathrooms in this hotel have both toilets and urinals?” And even if they understand the bidet’s function, Americans often fail to see its appeal. Attempts to popularize the bidet in the United States have failed before, but recent efforts continue—and perhaps they might even succeed in bringing this Old World device to new backsides.

How evangelicals, once culturally confident, became an anxious minority seeking political protection from the least traditionally religious president in living memory

One of the most extraordinary things about our current politics—really, one of the most extraordinary developments of recent political history—is the loyal adherence of religious conservatives to Donald Trump. The president won four-fifths of the votes of white evangelical Christians. This was a higher level of support than either Ronald Reagan or George W. Bush, an outspoken evangelical himself, ever received.

Trump’s background and beliefs could hardly be more incompatible with traditional Christian models of life and leadership. Trump’s past political stances (he once supported the right to partial-birth abortion), his character (he has bragged about sexually assaulting women), and even his language (he introduced the words pussy and shithole into presidential discourse) would more naturally lead religious conservatives toward exorcism than alliance. This is a man who has cruelly publicized his infidelities, made disturbing sexual comments about his elder daughter, and boasted about the size of his penis on the debate stage. His lawyer reportedly arranged a $130,000 payment to a porn star to dissuade her from disclosing an alleged affair. Yet religious conservatives who once blanched at PG-13 public standards now yawn at such NC-17 maneuvers. We are a long way from The Book of Virtues.

A new six-part Netflix documentary is a stunning dive into a utopian religious community in Oregon that descended into darkness.

To describe Wild Wild Country as jaw-dropping is to understate the number of times my mouth gaped while watching the series, a six-part Netflix documentary about a religious community in Oregon in the 1980s. It’s ostensibly the story of how a group led by the dynamic Bhagwan Shree Rajneesh purchased 64,000 acres of land in central Oregon in a bid to build its own utopian city. But, as the series immediately reveals, the narrative becomes darker and stranger than you might ever imagine. It’s a tale that mines the weirdness of the counterculture in the ’70s and ’80s, the age-old conflict between rural Americans and free love–preaching cityfolk, and the emotional vacuum that compels people to interpret a bearded mystic as something akin to a god.

Among the more practical advice that can be offered to international travelers is wisdom of the bathroom. So let me say, as someone who recently returned from China, that you should be prepared to one, carry your own toilet paper and two, practice your squat.

I do not mean those goofy chairless sits you see at the gym. No, toned glutes will not save you here. I mean the deep squat, where you plop your butt down as far as it can go while staying aloft and balanced on the heels. This position—in contrast to deep squatting on your toes as most Americans naturally attempt instead—is so stable that people in China can hold it for minutes and perhaps even hours ...

As the Trump presidency approaches a troubling tipping point, it’s time to find the right term for what’s happening to democracy.

Here is something that, even on its own, is astonishing: The president of the United States demanded the firing of the former FBI deputy director, a career civil servant, after tormenting him both publicly and privately—and it worked.

The American public still doesn’t know in any detail what Andrew McCabe, who was dismissed late Friday night, is supposed to have done. But citizens can see exactly what Donald Trump did to McCabe. And the president’s actions are corroding the independence that a healthy constitutional democracy needs in its law enforcement and intelligence apparatus.

McCabe’s firing is part of a pattern. It follows the summary removal of the previous FBI director and comes amid Trump’s repeated threats to fire the attorney general, the deputy attorney, and the special counsel who is investigating him and his associates. McCabe’s ouster unfolded against a chaotic political backdrop that includes Trump’s repeated calls for investigations of his political opponents, demands of loyalty from senior law-enforcement officials, and declarations that the job of those officials is to protect him from investigation.

The first female speaker of the House has become the most effec­tive congressional leader of modern times—and, not coinciden­tally, the most vilified.

Last May, TheWashington Post’s James Hohmann noted “an uncovered dynamic” that helped explain the GOP’s failure to repeal Obamacare. Three current Democratic House members had opposed the Affordable Care Act when it first passed. Twelve Democratic House members represent districts that Donald Trump won. Yet none voted for repeal. The “uncovered dynamic,” Hohmann suggested, was Nancy Pelosi’s skill at keeping her party in line.

She’s been keeping it in line for more than a decade. In 2005, George W. Bush launched his second presidential term with an aggressive push to partially privatize Social Security. For nine months, Republicans demanded that Democrats admit the retirement system was in crisis and offer their own program to change it. Pelosi refused. Democratic members of Congress hosted more than 1,000 town-hall meetings to rally opposition to privatization. That fall, Republicans backed down, and Bush’s second term never recovered.

For years, the restaurateur played a jerk with a heart of gold. Now, he’s the latest celebrity chef to be accused of sexual harassment.

“There’s no way—no offense—but a girl shouldn’t be at the same level that I am.”

That was Mike Isabella, celebrity chef and successful restaurateur, making his debut on the show that would make him famous. Bravo’s Top Chef, to kick off its Las Vegas–set Season 6, had pitted its new group of contestants against each other in a mise-en-place relay race; Isabella, shucking clams, had looked over and realized to his great indignation that Jen Carroll, a sous chef at New York’s iconic Le Bernardin, was doing the work more quickly than he was.

Top Chef is a simmering stew of a show—one that blends the pragmatic testing of culinary artistry with reality-TV sugar and reality-TV spice—and Isabella quickly established himself as Season 6’s pseudo-villain: swaggering, macho, quick to anger, and extremely happy to insult his fellow contestants, including Carroll and, soon thereafter, Robin Leventhal (a self-taught chef and cancer survivor). Isabella was a villain, however, who was also, occasionally, self-effacing. A little bit bumbling. Aw, shucks, quite literally. He would later explain, of the “same level” comment:

Congressional Republicans and conservative pundits had the chance to signal to Trump that his attacks on law enforcement are unacceptable—but they sent the opposite message.

President Trump raged at his TV on Sunday morning. And yet on balance, he had a pretty good weekend. He got a measure of revenge upon the hated FBI, firing former Deputy Director Andrew McCabe two days before his pension vested. He successfully coerced his balky attorney general, Jeff Sessions, into speeding up the FBI’s processes to enable the firing before McCabe’s retirement date.

Beyond this vindictive fun for the president, he achieved something politically important. The Trump administration is offering a not very convincing story about the McCabe firing. It is insisting that the decision was taken internally by the Department of Justice, and that the president’s repeated and emphatic demands—public and private—had nothing whatsoever to do with it.